Perry v Simlesa & Ors [2003] NTCA 2

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Perry v Simlesa & Ors [2003] NTCA 2

PARTIES: PERRY, Russell Lawrence

v

SIMLESA, Marco Ante, REIDY, Kode Robert, ARMITAGE, Lucas Steven

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NOS: AP13, 14 & 15 of 2003
(20015481, 20102600, 20102599)

DELIVERED: 22 January 2004

HEARING DATES: 5 December 2003

JUDGMENT OF: MILDREN, THOMAS & BAILEY JJ

CATCHWORDS:

CRIMINAL LAW
Appeal - definition of "river" - Barramundi Fishery Management Plan - whether respondents fished landwards of river mouth - definition of "river mouth" - appeal allowed - conviction restored.

WORDS AND PHRASES
Definition of "river" and "river mouth".
Baramundi Fishery Management Plan, cl 4(1) and cl 8
Fisheries Act, s 4, s 21, s 22, s 25, s 27, s 57 and s 63
Fisheries Regulations, s 3

Commonwealth v Yarmirr (1999) 168 ALR 426 at 470; (2002) 208 CLR 1; Horne v Mackenzie (1839) 6 Cl & F 628 at 644 to 645; 7 ER 834 at 841; The King v Forty-Nine Casks of Brandy (1836) 3 HAGG 257 at 276; 166 ER 401 at 408, referred to.

REPRESENTATION:

Counsel:
Appellant: M Carey
Respondents: R Niall

Solicitors:
Appellant: DPP
Respondents: Morgan Buckley

Judgment category classification: B
Judgment ID Number:
Number of pages: 13

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Perry v Simlesa & Ors [2003] NTCA 2
Nos. AP13 of 2003, AP14 of 2003 & AP15 of 2003
(20015481, 20102600, 20102599)


BETWEEN:

RUSSELL LAWRENCE PERRY
Appellant

AND:

MARCO ANTE SIMLESA
KODE ROBERT REIDY
LUCAS STEVEN ARMITAGE
Respondents

CORAM: MILDREN, THOMAS & BAILEY JJ

REASONS FOR JUDGMENT

(Delivered 22 January 2004)

Mildren J:
[1] The respondents were charged upon complaint in the Court of Summary Jurisdiction with fishing using a gill net with a mesh size of 150mm at two places, namely a place approximately 500 metres landwards of the mouth of Perakary Creek and another place approximately 800 metres so landwards, whilst being the holder of a barramundi licence, contrary to cl 8(1)(a) of the Barramundi Fishery Management Plan. Upon their conviction they sought leave to appeal out of time to the Supreme Court.
[2] In the Supreme Court there were two questions raised by the appeal, namely whether Perakary Creek was a river as defined in cl 4 of the plan, and if it was, whether the places where the respondents fished were landwards of the river mouth. No point was taken about the application for an extension of time. The learned Judge held that the prosecution had not established that the area known as Perakary Creek was a river as defined and if that were so it followed that the prosecution had not proved that the respondents' nets had been placed landwards of the river mouth. Accordingly, his Honour granted leave to appeal and set aside the convictions, penalties and orders for forfeiture imposed by the learned Magistrate.
[3] The appeal to this Court raises two issues. The first is whether the learned Judge was correct in finding that the learned Magistrate had erred in concluding that Perakary Creek was a river as defined. The answer to this question depends upon the meaning to be given to the definition of "river" in the "Barramundi Fishery Management Plan". The second question is whether, if Perakary Creek is a river as defined, the learned Magistrate was correct in finding that the respondents had fished landwards of the river mouth of Perakary Creek.
[4] Part III of the Fisheries Act deals with the establishment of fisheries management plans.
[5] The purposes of Pt III of the Fisheries Act are set out in s 21(1), namely to conserve, enhance, protect, utilise and manage the fish and aquatic life resources in the Territory for various purposes including the promotion, development and maintenance of commercial and amateur fishing.
[6] Pursuant to s 22 of the Act the Minister may by notice in the Gazette declare an area, place or any waters to be a fishery management area. Under s 23 of the Act where a fishery management area has been declared the Director shall as soon as practicable after the declaration prepare a proposed plan for the whole or part of the fishery management area. If the plan having gone through certain processes more specifically described in the Act is approved by the Minister then once approved the Minister may give notice of the plan in the Government Gazette (see s 25(2) and (3)). Once the plan is approved the plan is deemed to be a regulation for the purposes of s 57 and s 63 of the Interpretation Act (see s 49(1)) and it is an "operative management plan" within the meaning of s 4(1) and consequently has force and effect as a regulation under the Act by virtue of s 27(1).
[7] Section 27(2) of the Fisheries Act provides that in the event of an inconsistency between a provision of an operative management plan and the regulations the provisions of the plan shall prevail to the extent of any inconsistency. Section 27(3) provides that where a word or phrase is used in a fishery management plan which is not defined by the Act or by the plan but is defined by the Fisheries Regulations, it shall have the meaning under the Fisheries Regulations.
[8] Clause 8(1) of the Barramundi Fishery Management Plan which is the relevant plan in this case provides:
"(1) Subject to this Part, a barramundi licensee must not fish under a barramundi licence -
(a) landwards of the coast or a river mouth;
(b) seawards of an imaginary line three nautical miles from the shore at mean low-water mark and parallel to the shore or to any river mouth; …
(c),(d),(e) & (f) not relevant.
[9] The words "river mouth" are defined by cl 4(1) of the Barramundi Fishery Management Plan to include the body of water delineated "by an imaginary line, contiguous with the shape of the adjoining coast, bay or inlet, across a river."
[10] The definition of "river" in cl 4(1) of the Barramundi Fishery Management Plan is as follows:
"River" includes a creek, stream, tidal arm, billabong, lake or other body of water, whether fresh or brackish, that, seasonally or consistently, flows directly or indirectly into the sea, and for this purpose, a tributary, branch, anabranch, channel or division of a river, or a river flowing into a river, is to be taken to form part of and be one river."
[11] The argument of the appellant is that Perakary Creek is a river within the ordinary meaning of the word "river". Emphasis is placed upon the definition using the word "includes" rather than "means". Alternatively it was put that Perakary Creek was a tidal arm or creek and that the words in the definition "whether fresh or brackish, that, seasonally or consistently, flows directly or indirectly into the sea" qualify the words "other body of water" but do not qualify the words "creek, stream, tidal arm" etc. As a matter of fact Perakary Creek is a tidal arm of the sea. The description of it by the learned Magistrate is that of a broad meandering stream emerging to the sea at Gordon Bay in Bathurst Island. The learned Magistrate further said in his very careful judgment:
"26. Everything about the appearance of Perakary Creek in the charts, map, aerial photographs, photographs from land and from its waters and the video tape footage suggest that it is a "creek", a "tidal arm": in short "a river". It has a well marked, apparently steep sided channel, such that net number 4, the net about 800 metres from the open sea, was strung from mangrove trunks rooted at a higher level than that of the creek - higher by some metres from the creek bed - and covered the extent of the creek's waters from bank to bank. As far as I can tell, the physical features were pretty much the same at net number 5 (1500 metres from the open sea): mangroves growing on a flattish area, and that ending, suddenly delineated by the steep bank of Perakary Creek.
27. The presence of mangroves indicates unmistakably that those flattish areas are inundated by the tidal movements of the sea. Mr Edmeades' opinion, which I accept, was that at the point where Perakary Creek meets the open sea, the mangrove type or types indicate that the land is inundated on every high tide not just the springs. I have no reason to believe that the situation was any different at the two points where nets number 4 and number 5 were located.
28. I can see no reason at all that this pattern of inundation should in any way affect the characterisation of Perakary Creek as a river, and, in particular why it should affect in any way, the establishment, accordingly to the BFMP's definition of "river mouth". In my judgment the "coast" is self evidently the seaward edge of the mangroves, and the beach along that edge."
[12] I do not consider that the facts enable me to reach the conclusion that the places where the respondents' nets were found were landwards of the river mouth if the word "river" is given its usual meaning. The Oxford English Dictionary gives as its primary meaning for the word river "a copious stream of water flowing in a channel towards the sea, a lake, or other stream". The same definition appears in the Shorter Oxford Dictionary. The Macquarie Dictionary defines it in the third edition to be "a considerable natural stream of water flowing in a definite course or channel or series of diverging and converging channels." I think in Australia the meaning of the word "river" is not confined to a river which flows towards the sea or a lake but would include a river which merely peters out into the desert sands, but otherwise I think the ordinary meaning of the word is a copious natural stream of water flowing in a definite course or channel. I do not consider that it is necessary for the purpose of this definition to state that a river can only be a river if the water is fresh, but it is my view that for it to be a river fresh water must flow in at least a part of the river. A river is to be contrasted with a tidal arm of the sea which is itself a part of the sea. On the facts of this case Perakary Creek was a tidal arm of the sea as both the learned Magistrate and the learned Judge found.
[13] The question then is whether it fell within the extended definition of "river" as contained within cl 4 of the Barramundi Fishery Management Plan. It was submitted by Mr Niall for the respondents that "tidal arm" means an arm of a river. I do not think that is what is meant by the ordinary use of language. Another suggestion was that the draftsman meant to include an estuary, which has two meanings, one of which is that part of the mouth or course of the river in which its current meets the sea's tides, and is subject to its affects. (I note that the second meaning given to "estuary" by the Macquarie Dictionary is an arm or inlet of the sea). Be that as it may, I think it is quite clear that "tidal arm" means an arm of the sea, and not an estuary in its prime meaning. In my opinion the word "tidal arm" contained in the definition can only mean a tidal arm of the sea which can neither be fresh nor brackish nor can it seasonally or consistently flow directly or indirectly into the sea because it is already part of it. That demonstrates to me that the words in the definition "whether fresh or brackish, that, seasonally or consistently, flows directly or indirectly into the sea" were intended to qualify the words "or other body of water" and cannot qualify the words "tidal arm". That being so Perakary Creek is a "river" as defined.
[14] Mr Niall referred us to the history of the definition of "river" as it appeared in the former Fisheries Regulations. The definition of "river" contained in the regulations under the Fish and Fisheries Act 1979 was:
"'river' includes creek, stream, billabong, lake and any other water course or body of water that flows, directly or indirectly into the sea, whether seasonally or consistently throughout the year."
[15] This definition was amended in 1983 to read:
"'river' includes a creek, stream, billabong, lake and any other water course or body of water that comprises or drains a permanent source of freshwater and flows, directly or indirectly into the sea, whether seasonally or consistently throughout the year, the lower sections of which may contain saltwater."
[16] Neither of these definitions are the same as the present definition. Neither contain "tidal arm" in their definition. It is reasonably clear that the definition of "river" up to 1988 when the present Act and the management plan came into force referred only to fresh water courses, including estuaries, and did not include an arm of the sea. For that reason, I do not think the history of the legislation is very helpful as plainly the draftsman intended to include arms of the sea for the first time.
[17] The next question is where is the river mouth. The definition cl 4(1) of the Barramundi Fishery Management Plan includes "an imaginary line, contiguous with the shape of the adjoining coast … across a river".
[18] The ordinary meaning of "river mouth" comprehends the whole space between the lowest ebb and the highest flood mark and is therefore an immoveable space: see Horne v Mackenzie (1839) 6 Cl & F 628 at 644 to 645; 7 ER 834 at 841; but in the case of a tidal arm of the sea this seems to be an inappropriate definition as it would deprive "tidal arm" within the definition of "river" of any work to do.
[19] There is no definition of "coast" contained in the Barramundi Fishery Management Plan nor in the Fisheries Act. There is a definition of "coastline" in the Fisheries Regulations which is defined to mean:
"(a) except in relation to the mouth of a river, an imaginary line drawn along the coast at the Highest Astronomical Tide; or
(b) in relation to the mouth of a river, an imaginary line contiguous with the adjacent coastline drawn across the mouth of the river."
[20] Obviously (a) does not apply because we are here dealing with a river mouth. So far as (b) is concerned, it takes the matter no further than the definition of "river mouth" in the Barramundi Fishery Management Plan.
[21] We were referred to reg 3(3) of the Fisheries Regulations which provides:
"(3) Where, in pursuance of these Regulations, a point, line, area or relative position is to be calculated by reference to the coastline or an imaginary line along the coastline (whether or not along a particular water line on the coast) the coastline or an imaginary line along the coastline shall be deemed to include -
(a) in relation to a river specified in Schedule 5 of the Barramundi Fishery Management Plan as in force from time to time, the river closure line specified in that schedule for the river; and
(b) in relation to any other river, an imaginary straight line across the mouth of the river calculated in the same manner as for the calculation of the baseline for the purposes of the Seas and Submerged Lands Act 1973 of the Commonwealth had all off lying islands and historical bays and waters been ignored."
[22] In my opinion there is absolutely no justification for treating the word "coastline" which has a very special meaning as meaning the same thing as "coast" and I think it is plain that the draftsman deliberately chose a different word for the purposes of the definition of "river mouth" in the Barramundi Fishery Management Plan. In this respect I agree with the conclusion reached by the learned Magistrate.
[23] Counsel for the respondents submitted that the word "coast" should be interpreted to mean coast at the highest astronomical tide. If this were so, clearly no part of a tidal inlet could be landward of the coast and this would make a mockery of the Barramundi Fishery Management Plan. I note also that that would be in effect to arrive at the same conclusion as if the word "coast" meant "coastline" as defined under the Fisheries Regulations reg 3(3)(b). I do not think it likely that the draftsman intended that conclusion.
[24] That being so, some other alternative must be found.
[25] The position at common law was described by Sir John Nicoll in The King v Forty-Nine Casks of Brandy (1836) 3 HAGG 257 at 276; 166 ER 401 at 408:
"Now the coast is, properly, not the sea, but the land which bounds the sea; it is the limit of the land jurisdiction, and of the parishes and manors - bordering on the sea - which are part of the land of the county. This limit, however, and character, varies according to the state of the tide: when the tide is in, and covers the land, it is sea; when the tide is out, it is land as far as low-water mark: between high-and low-water mark it must therefore be considered as divisum imperium."
[26] Given the very high tidal range that occurs in the Northern Territory where seven metres is not uncommon this results in a very large area of land. Nevertheless as Beaumont and von Doussa JJ said in Commonwealth v Yarmirr (1999) 168 ALR 426 at 470:
"At common law, the intertidal zone is treated as the shore or foreshore, that is to say, the land lying between the ordinary flux and reflux of the tide being the mean high water mark and the mean low water mark of ordinary tides occurring between the spring and neap (ie ordinary) tides, which is alternatively covered and left dry by the flux and reflux of the tide: see for example Attorney General v Chambers [1854] 43 ER 486; Bowen v Minister for Urban Affairs and Planning for Willoughby City Council (1996) 90 LGERA 368 per Bannon J at 369. The public right to fish, and ancillary rights (eg bait-digging, the taking of shell-fish or worms) may be exercised on the foreshore: see Anderson v Alnwick District Council [1993] 3 All ER 613; Adair v National Trust [1998] NI 33."
[27] There is nothing in the appeal to the High Court (2002) 208 CLR 1 which casts any doubt on the correctness of this proposition.
[28] Therefore there are three choices. First, "coast" means the whole of the intertidal zone, and to be "landwards of the coast", means landwards of the mean highwater mark. This is little better than the argument that the coast should be interpreted to mean the coast at the highest astronomical tide. For all intents and purposes, it would leave all tidal inlets available to commercial barramundi fishing. I do not think the purposes of the Act would be promoted by that interpretation. Also, the definition of "river mouth" refers to an imaginary line contiguous with the shape of the adjoining coast, not a band which may be up to a hundred metres or so in width. This alternative must be rejected.
[29] The second alternative is that the line of the coast changes with the flow and ebb of the tides, so that when the tide is in, commercial barramundi fishing in the intertidal zone is permitted. The difficulty with this possibility, (and with the first alternative) is that it is difficult to see how one could fish to the landward side of such a line, so that interpretation is obviously not what clause 8(1)(a) is directed at.
[30] That being so it seems to me that the correct interpretation is the third alternative, ie, the line which must be drawn, in so far as it refers to the "coast", extends seawards as far as the mean low water mark of ordinary tides. I consider that the imaginary line contiguous with the shape of the adjoining coast is that line and that therefore anything on the landwards side of this line falls within the expression "landwards of the coast or a river mouth" in cl 8(1)(a) of the Barramundi Fishery Management Plan.
[31] I consider that this conclusion is further supported by the terms of cl 8(1)(b) of the Barramundi Fishery Management Plan which refers to a barramundi licensee not fishing under a barramundi licence "seawards of an imaginary line three nautical miles from the shore at mean low-water mark and parallel to the shore or to any river mouth." Clearly the shore at mean low water mark is the datum from which the three nautical mile imaginary line is to be drawn. That is consistent with my opinion in that it refers to the same datum when reference is made to fishing landwards of the coast or of a river mouth in terms of cl 8(1)(a).
[32] I therefore conclude that the appeal must be allowed and the convictions restored.
[33] There is however, also an appeal against sentence which is yet to be dealt with. Accordingly, the appeal must be remitted back to the Supreme Court to deal with the matter of sentence and possibly forfeiture if that is also in issue.
Thomas J:
[34] I have read the draft judgment prepared by Mildren J. I agree with his reasons for allowing the appeal. I concur with the proposed orders.
Bailey J:
[35] I have had the advantage of reading the judgment of Mildren J in draft. I agree the appeal must be allowed and the convictions of the respondents restored for the reasons referred to by his Honour. I also agree that the matter must be remitted back to the Supreme Court to deal with the outstanding appeals against sentence and any questions arising concerning forfeiture.
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